Florida Code of Judicial Conduct

the Florida Code of Judicial Conduct
by Judge Charles J. Kahn

Page 10

Most judges have come to realize that they cannot do their job without lawyers. Most lawyers have concluded that the obverse is also true. Although judges and lawyers meet in a formal context during court proceedings, many other less formal relationships and connections exist between judges and lawyers. Oftentimes, questions about such relationships and connections are governed by the Florida Code of Judicial Conduct (“the code”)1 and the opinions of the Florida Judicial Ethics Advisory Committee (JEAC or “the committee”).2 This article seeks to familiarize Florida lawyers with solutions to frequently occurring situations involving relationships between lawyers and judges.

Social Relationships Between Judges and Lawyers
Lawyers, like members of any profession, commonly form friendships among themselves, and these friendships may well endure beyond the time one of the lawyers takes the bench through election or appointment. Under Canon 2 of the code, “A judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities.” In particular, “A judge shall not allow family, social, political, or other relationships to influence the judge’s judicial conduct or judgment.”3

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In the United States, the term "recusal" is used most often with respect to court proceedings. Two sections of title 28 of the United States Code (the Judicial Code) providing standards for judicial disqualification or recusal. Section 455, captioned "Disqualification of justice, judge, or magistrate judge," provides that a federal judge "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." The same section also provides that a judge is disqualified "where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding"; when the judge has previously served as a lawyer or witness concerning the same case or has expressed an opinion concerning its outcome; or when the judge or a member of his or her immediate family has a financial interest in the outcome of the proceeding.

28 U.S.C. sec. 144, captioned "Bias or prejudice of judge," provides that under circumstances, when a party to a case in a United States District Court files a "timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of an adverse party," the case shall be transferred to another judge.
The general rule is that to warrant recusal, a judge's expression of an opinion about the merits of a case or familiarity with the facts or the parties must have originated in a source outside the case itself. This is referred to in the United States as the "extra-judicial source rule" and was recognized as a general presumption, although not an invariable one, in the 1994 U.S. Supreme Court decision in Liteky v. United States.

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